Opinion
16479-22
11-09-2023
ESTATE OF THOMAS J. OSTRANDER, DECEASED, KATHERINE OSTRANDER, STATUTORY EXECUTOR, Petitioner(s) v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On July 26, 2022, the petition to commence this case was filed by Katherine Ostrander on behalf of petitioner. The petition seeks review of a notice of deficiency issued to petitioner with respect to a proposed deficiency in estate taxes and indicates that Katherine Ostrander is the statutory executor for petitioner under Internal Revenue Code §2203. On November 2, 2023, the parties filed a Proposed Stipulated Decision.
It is well settled that, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, we are without jurisdiction as to that taxpayer. Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). The Court does not recognize statutory executors. Accordingly, at this juncture, the Court appears to lack jurisdiction of petitioner.
However, in relevant part, Tax Court Rule 60(a) provides that "A case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and such ratification shall have the same effect as if the case had been properly brought by such party." A decedent's estate may be represented by someone acting in a fiduciary capacity, such as an executor, administrator, or personal representative of the decedent's estate. With respect to such fiduciary, Rule 60(c), Tax Court Rules of Practice and Procedure, provides that "the capacity of a fiduciary or other representative to litigate shall be determined in accordance with the law of the jurisdiction from which such person's authority is derived."
In the alternative, the parties may choose to reach an administrative agreement to resolve this matter, in which event an appropriate Motion to Dismiss for Lack of Jurisdiction should be filed.
Upon due consideration of the foregoing, it is
ORDERED that the caption of this case is amended to read: "Estate of Thomas J. Ostrander, Deceased, Petitioner v. Commissioner of Internal Revenue, Respondent". It is further
ORDERED that, on or before December 13, 2023, the parties shall confer concerning the following matters: (1) whether a probate proceeding will be commenced with respect to the estate and, if so, the name and address of the duly appointed fiduciary of the estate; (2) whether any duly appointed fiduciary of the estate intends to prosecute this case on the estate's behalf by filing an appropriate Motion to Substitute Parties and Change Caption (to which should be attached relevant documentation supporting the individual's status as a fiduciary with legal capacity to represent the estate); and (3) if a probate proceeding will not be commenced, the names and addresses of the decedent's heirs at law. It is further
ORDERED that, on or before December 27, 2023, the parties shall file a joint Status Report concerning the then-current status of this case, including information about the above-referenced matters set forth in the ordered paragraph above. The Court will hold in abeyance the parties' Proposed Stipulated Decision.